2019 IL App (2d) 180709-U 

No. 2-18-0709 

Order filed December 16, 2019 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as 

precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

NEAL R. PETERSON, ) On Petition for Administrative Review from

) the Illinois Human Rights Commission. 

Petitioner, ) 

) 

v. ) No. 2011-CA-10-02 

) EEOC No. 21-BA-10064 

THE ILLINOIS HUMAN RIGHTS ) ALS No. 12-0048 

COMMISSION, THE DEPARTMENT ) 

OF HUMAN RIGHTS, and ROCKFORD ) 

PUBLIC SCHOOL DISTRICT No. 205, ) 

) 

Respondents. ) 

______________________________________________________________________________ 

JUSTICE BRIDGES delivered the judgment of the court. 

Justices Jorgenson and Hudson concurred in the judgment. 

ORDER

¶ 1 Held: The Commission properly sustained the Department’s dismissal of petitioner’s 

charge of employment discrimination: the Commission assumed the truth of the 

facts alleged by petitioner but properly found that they did not establish harassment 

or abuse, and the Commission properly found that, given the lack of evidence that 

the employer treated a similarly situated younger employee more favorably, 

petitioner did not make a prima facie case that he was fired because of his age.

¶ 2 Petitioner, Neal R. Peterson, seeks review of a final order entered by the Illinois Human 

Rights Commission (Commission) sustaining the Department of Human Rights’ (Department’s) 
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dismissal of his charge of discrimination against his former employer, Rockford Public School 

District No. 205 (School District). On appeal, Peterson argues that the Department investigator 

improperly assessed credibility in light of conflicting evidence and that, given the conflicting 

evidence, the Commission erred in sustaining the Department’s dismissal for lack of substantial 

evidence. Respondents, the Commission, the Department, and the School District argue that the 

Commission did not abuse its discretion by sustaining the dismissal. For the reasons that follow, 

we affirm.

¶ 3 I. BACKGROUND

¶ 4 On June 13, 2007, Peterson was hired by the School District as a design and marketing 

specialist in its communications department. From October 2009 until his termination on May 27, 

2010, Peterson was supervised by Mark Bonne, chief of communications for the School District. 

Other employees in the department included: Vince Vitale, audio/visual manager, age 33; Michael 

McCulloh, writer, age 43; and Jarod Weedman, webmaster, age 28. 

¶ 5 On July 7, 2010, Peterson, then 58 years old, filed a three-count charge of discrimination 

against the School District with the Department. In count A, Peterson alleged that the School 

District harassed him due to his age. More specifically, Peterson alleged that Bonne made certain 

“age related comments.” For instance, Bonne told Peterson that he needed to “think more outside 

the box if [he] want[ed] to stay in [his] position,” that he “should perform [his] job duties more 

like co-worker, Vince Vitale,” and that he “had to fight it out with a younger employee to get a 

window view.” According to Peterson, Bonne did not harass Vitale in the same manner.

¶ 6 In count B, Peterson alleged that the School District subjected him to an abusive work 

environment due to his age. According to Peterson, Bonne sent him “negative e-mails.” For 

instance, on March 26, 2010, Bonne wrote that “ ‘you need to be proactive and not always wait 
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for me to tell you what to do or how to do it’ ” and that Bonne “shouldn’t have to babysit [Peterson] 

on a project.” Bonne also made the following comments. On April 12, 2010, Bonne told Vitale 

to “create a video for a banquet to keep all ‘the old people awake.’ ” On April 16, 2010, Bonne 

told Peterson during a meeting that he “should take a proactive attitude like Vince Vitale and attend 

(district) events without being assigned.” On May 17, 2010, Bonne accused Peterson “of not being 

able to perform [his] job duties in a timely manner and that [he] was going to have to work longer 

days.” According to Peterson, “[y]ounger employees were not subjected to an age abusive work 

environment.” 

¶ 7 In count C, Peterson alleged that the School District discharged him due to his age. 

According to Peterson, despite meeting the School District’s job expectations, he was told that he 

“failed to perform an assigned job duty.” He alleged that “[s]imilarly situated employees under 

40 or significantly younger than [he] were not discharged under similar circumstances.” 

¶ 8 The Department investigated Peterson’s charge of discrimination. An investigator 

interviewed Peterson, Bonne, Cedric Lewis, LaVonne Sheffield, Shanita Davenport, and Vitale. 

The following relevant evidence was obtained concerning counts A and B of the charge of 

discrimination. Peterson told the investigator that his performance during his first two years of 

employment had been “outstanding.” In 2009, he was assigned to Bonne’s department. Bonne 

subjected him to “age biased comments.” For instance, in December 2009, Bonne stopped by his 

desk and asked if a child in a photograph was his grandson, and when Peterson indicated that he 

was, Bonne stated, “ ‘[W]ow, you must be really old, that’s too bad.’ ” Bonne also suggested that 

Vitale should manage the School District’s Facebook page because “they were about the same 

age.” When Bonne told Peterson that he would have to “fight it out” for a window view, Bonne 

said that Weedman would have an “advantage due to his size and age.”
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¶ 9 Peterson told the investigator that, in March 2010, Bonne had written him up for alleged 

unsatisfactory performance in failing to timely post an electronic newsletter. According to 

Peterson, the problem was caused by technical issues. Bonne told Peterson that he “shouldn’t have 

to babysit him.” Peterson stated that Bonne characterized him as “lacking respect for authority, 

leaving work before completing assignments, and being disrespectful,” which Peterson denied and 

felt was motivated by age discrimination. 

¶ 10 Bonne told the investigator that, prior to May 2010, Peterson had exhibited performance 

issues, which he detailed in a March 2010 written warning. Bonne denied making the comment 

about Peterson’s grandson, denied stating that Vitale should make a video to “ ‘keep the old people 

awake,’ ” and denied that he selected Vitale for the Facebook duties based on his age. Bonne 

explained that, when the School District considered launching a Facebook page, Weedman was 

deemed the best candidate for the assignment because he had produced a prototype page, was more 

savvy with Facebook, and would be good at targeting younger audiences. Bonne agreed that he 

had asked Peterson to “ ‘think outside of the box’ ” and be more like Vitale, “who was more 

proactive about anticipating the needs of the communications department whereas [Peterson] 

failed to demonstrate such initiative.” Bonne also recalled that, when his division’s offices were 

relocating, he told his employees that they would have to “ ‘duke it out’ ” for the two available 

workspaces with windows, but denied stating that Weedman would have any advantage based on 

his “ ‘size and age.’ ” 

¶ 11 Lewis, the School District’s chief financial officer, advised the investigator that Peterson 

approached him in April 2010 and told him that Bonne was “ ‘riding him’ ” and picking on him 

because of his age, but Peterson was not able to give any examples of age-related conduct. Lewis 

held a meeting with Peterson and Bonne, during which Peterson made no reference to any age-
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related conduct on the part of Bonne. According to Lewis, such complaints were to be directed to 

the superintendent or to human resources. 

¶ 12 Davenport, the School District’s executive director of human resources, told the 

investigator that Peterson was hired in June 2007 and that his performance under his previous 

supervisor had been outstanding. Peterson was assigned to work for Bonne at the end of the 2009 

school year. Bonne repeatedly encountered issues with Peterson’s ability to perform his work, 

which led to a written warning on March 24, 2010. At no time did Peterson bring any concerns 

about age discrimination to the human resources department. 

¶ 13 Sheffield, the School District’s former superintendent, told the investigator that, in early 

2010, she called Peterson and McCulloh into her office to speak with them about concerns with 

their job performance. She recalled speaking to Peterson a second time about continuing issues 

with his production. Sheffield also stated that Peterson would complain about Bonne to Sheffield’s 

executive assistant or to Lewis, rather than to her. Sheffield stated that she made it clear to Peterson 

that Bonne was his supervisor and that he had to follow Bonne’s directions and improve his 

performance.

¶ 14 Vitale told the investigator that he did not recall Bonne making any age-related comments 

to Peterson. 

¶ 15 The investigator also reviewed numerous e-mail transmissions sent between Peterson and 

Bonne between October 2009 and May 2010, concerning Bonne’s work performance. For 

instance, on October 29, 2009, Bonne e-mailed Peterson expressing that he could not understand 

why Peterson was spending so much time on a certain project or what the problem was. In a series 

of e-mails between November 17, 2009, and December 7, 2009, concerning a public service 

announcement, Boone indicated that the project had been delayed for senseless reasons attributed 
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to Peterson’s failure to perform a task. On December 7 and 18, 2009, Bonne admonished Peterson 

for failing to complete projects in a timely fashion and in the manner requested. On February 10, 

2010, Bonne e-mailed Peterson and advised him that he failed to add certain language to the bottom 

of an announcement as requested and further instructed him to add a logo. Peterson responded by 

sending Bonne the logo and telling him to place it where he wanted. Bonne advised that it was 

not acceptable for him to avoid the task and ask Bonne to do it. Later that day, Peterson sent 

Bonne an item to review. Bonne told Peterson that a sentence was missing and asked whether he 

could trust the quality of work “ ‘coming from some of you.’ ” Later that month, Bonne again 

corrected one of Peterson’s submissions. On March 24, 2010, Bonne sent a memo to Peterson, the 

purpose of which was to memorialize ongoing concerns about Peterson’s lack of professionalism 

and respect for authority. Bonne cited to Peterson’s defiant tone in responding to his request to 

perform job duties and to cases where Peterson left work without having completed certain duties. 

The memo detailed events occurring in February and March 2010 and warned that termination 

could result if such behavior were not corrected. Additional e-mails concerning Peterson’s work 

performance were exchanged in April and May 2010. In an April 13, 2010, e-mail, Bonne told 

Peterson that his “ ‘I didn’t understand your directions’ ” defense was wearing thin.

¶ 16 The investigator obtained the following evidence concerning count C, Peterson’s allegation 

that he was discharged due to his age. Peterson told the investigator that, on May 27, 2010, the 

School District held an academic all-star banquet. His assignment was to usher students off of the 

stage during the program and back into the audience. Before the event, he was informed that the 

photographer hired for the event was not available. He was told that he needed to take pictures of 

the students on the “ ‘red carpet’ ” as they arrived at the event. While people were still arriving, 

Peterson and McCulloh left to have dinner at a nearby restaurant. They were gone for about half 
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an hour. They returned to take pictures of people who were still arriving. On May 28, 2010, 

Sheffield and Bonne confronted him about leaving the event. Peterson told them that he thought 

he had completed his duties. Sheffield fired him. Peterson told the investigator that Vitale, who 

had also been taking pictures, had not been discharged. Peterson also told the investigator that 

Vitale did not leave the event as he and McCulloh had. 

¶ 17 Davenport told the investigator that Sheffield advised her about Peterson leaving the event. 

She interviewed Peterson, who told her that he was not informed that he had to be there the entire 

time. When she interviewed McCulloh, he admitted to leaving the event to go eat, despite being 

responsible for taking pictures. Sheffield told Davenport that the men’s behavior was an 

embarrassment to the School District and that she wanted to fire them on the night of the banquet. 

Davenport told her that the process required an investigation. A recommendation was made to the 

school board to fire Peterson and McCulloh but it was not carried out until the June board meeting. 

Peterson gathered his personal belongings on May 28, 2010, and left. 

¶ 18 Bonne told the investigator that Peterson and McCulloh were assigned to take pictures of 

the students as they arrived at the banquet. When Sheffield noticed that only Vitale was taking 

pictures, Bonne attempted to contact them by phone but was not able to reach them. When they 

returned, Peterson told him that Bonne’s assistant told them they could leave. Bonne’s assistant

denied giving them permission or being in a position to do so. Bonne told the investigator that, 

prior to May 2010, he discussed the possibility of terminating both Peterson and McCulloh due to 

unsatisfactory job performance. A recommendation to discharge both men was made on May 28, 

2010, based on the fact that they had abandoned a job assignment. 

¶ 19 Vitale told the investigator that he was told on the day before the banquet that he was 

assigned to take pictures as “ ‘paparazzi’ ” of the students arriving at the banquet, in addition to 
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his other duties. Peterson and McCulloh began taking pictures at 5 p.m. Sometime later, Vitale 

was approached by Sheffield, who could not locate Peterson and McCulloh. Vitale called them 

and told them they had better return. Peterson and McCulloh returned and continued taking 

pictures. Vitale never left the premises.

¶ 20 On October 28, 2011, the Department dismissed the charge for lack of substantial evidence. 

With respect to the counts of harassment and abuse, the Department found that Peterson’s 

allegations against Bonne failed to establish a pattern of comments or conduct that referenced or 

alluded to Peterson’s age in any derogatory context. Thus, the Department concluded that there 

was no evidence to establish the existence of an environment of actionable workplace harassment 

or abuse. With respect to the allegation that Peterson was discharged due to his age, the 

Department found that the evidence showed that Peterson was not meeting the expectations of his 

supervisor, that Peterson and McCulloh left an assignment without the authorization of a 

supervisor, and that both individuals were terminated as a result. The Department further found 

that there was no evidence that a similarly situated younger employee had engaged in comparable

conduct and had been treated differently. 

¶ 21 Peterson filed a request for review by the Commission of the Department’s dismissal and

attached several exhibits. In his request, Peterson alleged that his attached evidence showed that 

“Bonne abusively manipulated [his] position with the District,” advertised Peterson’s position 

while he was still employed, “earmarked a young male” for the job, was “never completely truthful 

with [him],” and “intended to illegally reduce [his] salary.” Peterson further alleged that the 

investigator failed to contact certain witnesses, such as McCulloh, Weedman, Luz Ramirez (his 

former supervisor), and Rosann Hawkinson (Bonne’s former assistant), and failed to check 

Vitale’s phone records. Peterson maintained that the investigator did not “ask[] him appropriate 
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questions, or request[] any substantive evidence.” As a rebuttal to the investigation, Peterson 

claimed that, when he and McCulloh left the “red carpet” area, Vitale was no longer present and 

his “whereabouts were unknown” to Peterson, but Vitale was not terminated for abandoning his 

duties. Peterson also claimed that, while he and McCulloh were taking a “short supper” break, 

Caeser Mickens was present and bought him a drink. According to Peterson, Mickens was the 

“Head of Employee Advancement” for the School District and was also taking pictures on the “red 

carpet.” Mickens was not terminated.

¶ 22 The Department filed a response to Peterson’s request for review, asking that its dismissal 

for lack of substantial evidence be sustained. The Department argued that Peterson failed to 

provide any evidence that would warrant a reversal of its determination. 

¶ 23 The Commission sustained the dismissal. With respect to counts A and B,

1 the 

Commission noted that actionable harassment occurs when the workplace is permeated with 

discriminatory ridicule and insult that are sufficiently severe or pervasive to alter the conditions of 

the victim’s employment and create an abusive working environment. See Harris v. Forklift 

Systems, Inc., 510 U.S. 17, 21 (1993). The Commission found that, “[e]ven if taken as true,” the 

statements allegedly made by Bonne about Peterson’s age “were isolated and did not rise to the 

level of harassment.” In addition, the Commission found that the comments concerned work 

performance rather than age.

1 In its analysis, the Commission specifically referenced only count A and count C. 

However, it is clear that its discussion of count A incorporated the allegations that Peterson 

included in count B. 
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¶ 24 As to count C, the Commission explained that, to establish a prima facie case of 

discrimination, the evidence must show that (1) Peterson falls within a protected class, (2) Peterson 

was performing his work in a satisfactory manner, (3) Peterson was subjected to adverse action, 

and (4) the School District treated a similarly situated employee outside of Peterson’s protected 

class more favorably than Peterson under similar circumstances. See Marinelli v. Human Rights 

Commission, 262 Ill. App. 3d 247, 253-54 (1994). The Commission found that Peterson had not 

established the fourth element—there was no similarly situated younger employee treated more 

favorably than Peterson. 

¶ 25 Peterson timely petitioned for review in this court. See 775 ILCS 5/8-111(B)(1) (West 

2018). 

¶ 26 II. ANALYSIS

¶ 27 Peterson argues that the Department investigator improperly assessed credibility, in light 

of conflicting evidence, and that, given the conflicting evidence, the Commission erred in 

sustaining the Department’s dismissal of his charge of discrimination for lack of substantial 

evidence. Respondents argue that the Commission did not abuse its discretion by sustaining the 

dismissal of Peterson’s charge of discrimination. We agree with respondents.

¶ 28 The Illinois Human Rights Act (Act) (775 ILCS 5/1-101 et seq. (West 2018)) prohibits 

discrimination against a person on the basis of age. Id. § 1-102(A); see Owens v. Department of 

Human Rights, 403 Ill. App. 3d 899, 916 (2010). Under the Act, upon the filing of a discrimination 

charge, the Department must conduct a full investigation of the allegations and prepare a written 

report. 775 ILCS 5/7A-102(C)(1), (D)(1) (West 2018); Owens, 403 Ill. App. 3d at 917. Thereafter, 

the Department must review the report to determine whether there is “substantial evidence” that 

the alleged discrimination has occurred. 775 ILCS 5/7A-102(D)(2) (West 2018); Owens, 403 Ill. 
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App. 3d at 917. “Substantial evidence,” as defined by the Act, is “evidence which a reasonable 

mind accepts as sufficient to support a particular conclusion and which consists of more than a 

mere scintilla but may be somewhat less than a preponderance.” 775 ILCS 5/7A-102(D)(2) (West 

2018); see Owens, 403 Ill. App. 3d at 917. If the Department determines that there is no substantial 

evidence to support the allegation, the charge is dismissed. 775 ILCS 5/7A-102(D)(3) (West 

2018); Owens, 403 Ill. App. 3d at 917. The complainant may then seek review by the Commission 

of the dismissal. 775 ILCS 5/7A-102(D)(2)(a) (West 2018); see Owens, 403 Ill. App. 3d at 917 

(requests for review filed prior to January 1, 2008, were handled by chief legal counsel). If the 

Commission sustains the dismissal, the complainant may seek review in this court of the

Commission’s order. 775 ILCS 5/8-111(B)(1) (West 2018); Allen v. Lieberman, 359 Ill. App. 3d 

1170, 1180 (2005). 

¶ 29 This court reviews the decision of the Commission, not the Department. See Zaderaka v. 

Illinois Human Rights Comm’n, 131 Ill. 2d 172, 180 (1989). The Commission’s findings of fact 

are entitled to deference and “shall be sustained unless the court determines that such findings are 

contrary to the manifest weight of the evidence.” 775 ILCS 5/8-111(B)(2) (West 2018); see Stone 

v. Department of Human Rights, 299 Ill. App. 3d 306, 314 (1998). The Commission’s decision to 

sustain the dismissal of a charge will be reversed only where the decision was arbitrary and 

capricious or an abuse of discretion. Owens, 403 Ill. App. 3d at 917. A decision is arbitrary and

capricious if it contravenes legislative intent, fails to consider a critical aspect of the matter, or 

offers an explanation so implausible that it cannot be considered as a result of the exercise of 

the agency’s expertise. Young v. Illinois Human Rights Comm’n, 2012 IL App (1st) 112204, 

¶ 33. An abuse of discretion will be found where no reasonable person could agree with the 

decision of the Commission. Id.
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¶ 30 Before reaching the merits, we note the following. Illinois Supreme Court Rule 

341(h)(7) (eff. May 25, 2018) requires an appellant’s brief to contain argument supported by 

citations of the authorities and the pages of the record relied on. “A failure to cite relevant 

authority violates Rule 341 and can cause a party to forfeit consideration of the issue.” Kic v. 

Bianucci, 2011 IL App (1st) 100622, ¶ 23. “A brief that lacks any substantial conformity to 

the pertinent supreme court rules may justifiably be stricken.” Hall v. Naper Gold Hospitality 

LLC, 2012 IL App (2d) 111151, ¶ 7. In his opening brief, Peterson cites a single case: Cooper 

v. Salazar, No. 98 C 2930, 2001 WL 1351121 (N.D. Ill. Nov. 1, 2001), an unreported federal 

district court decision. Unreported federal district court decisions have no precedential value 

in this court. See County of Du Page v. Lake Street Spa, Inc., 395 Ill. App. 3d 110, 122 (2009); 

Burnette v. Stroger, 389 Ill. App. 3d 321, 329 (2009). Because Peterson has failed to provide 

us with any authority to support his arguments, we are free to strike his brief and dismiss the 

appeal. However, striking an appellate brief “is a harsh sanction and is appropriate only when 

the violations of procedural rules hinder our review.” Hall, 2012 IL App (2d) 111151, ¶ 15. 

Here, because the issues are apparent and we have the benefit of cogent briefs from 

respondents, we will entertain the appeal. See Twardowski v. Holiday Hospitality Franchising, 

Inc., 321 Ill. App. 3d 509, 511 (2001).

¶ 31 We first address Peterson’s arguments that the Department investigator improperly 

assessed credibility, in light of conflicting evidence, and that the Commission improperly sustained 

the Department’s findings.2 According to Peterson, there was “conflicting evidence,” given 

2 Peterson’s argument is premised on the Cooper decision. In that case, the district court 
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Bonne’s denial that he made certain age-related statements. However, the record is clear that, 

despite Bonne’s denial, both the Department and the Commission assumed that the statements 

had, in fact, been made. In its response to Peterson’s request for review, the Department

acknowledged that the “investigation reveals conflicting statements as to whether Bonne made 

statements about Complainant’s age and made a statement about keep older prospective 

retirees awake.” Nevertheless, the Department then stated: “However, the alleged incidents 

were isolated and do not rise to the level of harassment.” Likewise, the Commission made 

clear that it assumed that Bonne had made all the alleged statements, ruling that, “[e]ven if 

taken as true,” the statements “were isolated and did not rise to the level of harassment.” Thus, 

Peterson’s claim that improper credibility determinations were made is belied by the record.

¶ 32 We turn now to the issue of whether the Commission abused its discretion in sustaining for 

lack of substantial evidence the Department’s dismissal of Peterson’s allegations of “age related 

harassment” and “an abusive work environment.” For a claim of harassment to be actionable, the 

aggrieved employee must present evidence that the employer’s behavior was severe or pervasive 

enough to alter the conditions of the employee’s employment and create a hostile and abusive work 

environment. Cook County Sheriff’s Office v. Cook County Comm’n on Human Rights, 2016 IL 

App (1st) 150718, ¶ 32. The employee must also show that he or she subjectively perceived the 

employer’s behavior as hostile or abusive. Id. In determining whether these elements have been 

permanently enjoined the Department from “relying on any credibility determinations made 

without affording complainants an opportunity to confront and cross examine witnesses against 

them.” Cooper, No. 98 C 2980, 2001 WL 1351121, at 6. 
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met, several factors should be considered, including: “ ‘the frequency of the discriminatory 

conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive 

utterance; and whether it unreasonably interferes with an employee’s work performance.’ ” Id.

(quoting Harris, 510 U.S. at 22-23). “[T]he ‘mere utterance of an...epithet which engenders 

offensive feelings’ is insufficient to constitute harassment.” Id. (quoting Harris, 510 U.S. at 21-

22). 

¶ 33 Peterson alleged that, from December 2009 through May 2010, Bonne harassed and abused 

him because of his age. In support, Peterson cited seven instances of what he claimed to be agerelated discriminatory statements made by Bonne: (1) Bonne told Peterson that he needed to “think 

more outside the box if [he] want[ed] to stay in [his] position”; (2) Bonne told Peterson that he 

“should perform [his] job duties more like co-worker, Vince Vitale”; (3) Bonne told Peterson that 

he would have to “fight it out” with Weedman for a window view and that Weedman would have 

an “advantage due to his size and age”; (4) in an e-mail to Peterson, Bonne wrote that “ ‘you need 

to be proactive and not always wait for me to tell you what to do or how to do it’ ” and that Bonne 

“shouldn’t have to babysit [him] on a project”; (5) Bonne told Vitale to “create a video for a 

banquet to keep all ‘the old people awake’ ”; (6) upon learning that the child in a photograph on 

Peterson’s desk was his grandson, Bonne stated, “ ‘wow, you must be really old, that’s too bad’ ”; 

and (7) Bonne suggested that Vitale manage the School District’s Facebook page because “they 

were about the same age.”

¶ 34 The Commission’s finding that these statements do not rise to the level of actionable 

harassment is not against the manifest weight of the evidence. Only two of Bonne’s comments

either directly or indirectly referenced Peterson’s age—his comment to Bonne that he “must be 

really old” and his comment that Weedman would have an advantage in a fight due to his size and 
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age. Bonne’s comment about keeping “ ‘the old people awake’ ” related only generally to age and 

did not reference Peterson at all. The remaining comments were related to Peterson’s job 

performance, rather than his age. Two offensive comments over the course of several months are

insufficient to establish that Bonne’s conduct was “severe and pervasive,” and therefore Peterson 

failed to establish a prima facie case of age discrimination based on harassment and abuse. Thus, 

the Commission’s decision to sustain the dismissal of counts A and B for lack of substantial 

evidence was not arbitrary and capricious or an abuse of discretion. 

¶ 35 We next consider whether the Commission abused its discretion in sustaining for lack of 

substantial evidence the Department’s dismissal of count C, Peterson’s allegation that he was 

discharged due to his age. Discrimination claims are analyzed by employing a three-prong test 

where the petitioner must first establish a prima facie case of unlawful discrimination by a 

preponderance of the evidence. Owens, 403 Ill. App. 3d at 918-19. If the petitioner establishes a 

prima facie case, a rebuttable presumption arises that the employer engaged in unlawful 

discrimination. Id. at 919. Under the second prong, to rebut the presumption, the employer must 

articulate a legitimate, nondiscriminatory reason for its decision. Id. If the employer does so, then 

under the third prong, the petitioner must prove by a preponderance of the evidence that the 

employer’s reason was merely a pretext for discrimination. Id. The petitioner maintains the 

burden of persuasion throughout the proceedings. Id.

¶ 36 To establish a prima facie case of employment discrimination to satisfy the first prong, the 

petitioner must demonstrate that: (1) he is a member of a protected class; (2) he met his employer’s

legitimate business expectations; (3) he suffered an adverse employment action; and (4) the 

employer treated a similarly situated employee outside of the protected class more favorably than 

the petitioner. Id.
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¶ 37 Here, the Commission found that Peterson failed to make a prima facie case, because he 

did not demonstrate that the School District treated a younger, similarly situated employee more 

favorably than Peterson. We agree. The evidence is undisputed that Peterson and McCulloh, a 

younger employee, both left their work assignment without asking permission to do so and that 

both were terminated as a result. Although Peterson asserted that Vitale, a younger employee who 

was also responsible for taking pictures at the event, was not discharged, there was no evidence 

that Vitale left the event without permission. Thus, the Commission’s decision to sustain the 

dismissal of count C for lack of substantial evidence was not arbitrary and capricious or an abuse 

of discretion. 

¶ 38 Last, we note that Peterson also argues that he “provided 29 pages of documents and a list 

of witnesses in his appended Request for Review, in what the Complainant would consider more 

than a mere scintilla, and possibly approaching a preponderance [of evidence].” Peterson claims 

that none of his evidence was commented on by the Department or the Commission. According 

to Peterson, his witnesses would have corroborated his account of Bonne’s age-related remarks 

and the documents would have established that he was performing his work in a satisfactory 

manner. However, as already noted, the Department and the Commission assumed Bonne’s 

alleged remarks and still found them to be insufficient to establish discrimination. In addition, 

even if Peterson could establish that he was performing his work in a satisfactory manner, this 

would not be enough to establish a prima facie case that he was fired due to his age, given his 

inability to establish that that the School District treated a younger, similarly situated employee 

more favorably than Peterson. 

¶ 39 III. CONCLUSION
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¶ 40 For the reasons stated, we affirm the decision of the Commission sustaining the 

Department’s dismissal for lack of substantial evidence of Peterson’s charge of discrimination. 

¶ 41 Affirmed.